An Article 32 preliminary hearing is the standard screening step before charges can be referred to a general court-martial. In most cases it is a public proceeding, conducted under predictable rules, where a preliminary hearing officer assesses probable cause. When the charges involve national security and classified information, however, the hearing changes in important ways. The basic purpose stays the same, but the handling of evidence, the openness of the proceeding, and the logistics around counsel and the accused all adapt to protect classified material. Understanding these differences helps a service member know what to expect.
The baseline: what an ordinary Article 32 looks like
In a routine case, the Article 32 hearing under Rule for Courts-Martial 405 asks a limited set of questions. The preliminary hearing officer determines whether each specification states an offense, whether there is probable cause to believe the accused committed the charged offenses, whether the court-martial has jurisdiction, and what disposition to recommend.
The hearing is presumptively public. The accused has the right to be present, to be represented by counsel, to cross-examine witnesses who appear, and to present relevant matter. The preliminary hearing officer may consider evidence that would not be admissible at trial, as long as it is relevant to the limited purposes of the hearing. None of that core structure disappears in a national security case. What changes is how classified evidence flows through the process.
The classified information privilege still applies, with adjustments
National security cases bring Military Rule of Evidence 505, the classified information privilege, into the preliminary hearing. But the rule applies differently at Article 32 than it does at trial. Several of the detailed trial-stage procedures in MRE 505, including portions dealing with disclosure litigation and certain alternatives, do not apply at the preliminary hearing stage. Instead, the preliminary hearing officer steps into the role that a military judge would play under the rules of evidence and exercises comparable authority to control and exclude evidence within the hearing.
This means the preliminary hearing officer becomes the gatekeeper for classified material during the hearing. The officer can decide what classified evidence is relevant to the limited Article 32 questions and can keep that material protected throughout the proceeding. The privilege itself is still claimed by the appropriate department or agency head, just as it is at trial, based on a determination that the information is properly classified and that disclosure would harm national security.
Closing the hearing to protect classified information
The most visible difference is that a national security Article 32 may be partially or fully closed to the public. While preliminary hearings are presumptively open, they can be closed when there is an overriding interest that outweighs the value of an open proceeding. The need to address classified information is a recognized basis for closure.
When the hearing reaches matters that require examining classified evidence, the preliminary hearing officer conducts those portions in a closed session. The public, and sometimes even individuals without the appropriate clearance, are excluded from the parts of the hearing where classified material is discussed. The officer must balance the strong tradition of open proceedings against the genuine need to protect national security, closing only what must be closed and keeping the rest open whenever possible.
Security clearances and access for counsel and the accused
National security charges add a logistical layer that ordinary cases do not have. Defense counsel typically need security clearances at the appropriate level to review the classified evidence relevant to the case. Obtaining those clearances takes time and can affect the pace of the proceeding.
The accused’s access to classified information is also controlled. Even though the accused has the right to be present and to participate, access to specific classified materials may be limited based on clearance and the need-to-know principle. Protective orders govern how counsel and the accused handle any classified information they are permitted to see, restricting where it can be reviewed, how it can be discussed, and how it must be safeguarded. These controls shape how the defense prepares for and participates in the hearing.
How evidence is presented and tested
Because the preliminary hearing focuses on probable cause rather than guilt beyond a reasonable doubt, the government already has latitude to present its case through documents and sworn statements. In a national security case, the government may rely on summaries or carefully handled classified submissions to establish probable cause without exposing sources, methods, or sensitive details beyond what the officer needs to make the required findings.
The defense’s ability to cross-examine and to challenge classified evidence operates within the closed-session structure and the protective framework. Counsel who hold the necessary clearances can confront classified material during closed portions, while the protective order ensures that nothing improperly leaves the secure setting. The preliminary hearing officer manages this carefully, exercising the evidentiary authority that the rules assign in order to keep the hearing both fair and secure.
What stays the same
It is worth emphasizing what does not change. The purpose of the hearing remains screening for probable cause, jurisdiction, and disposition. The accused still has counsel, still has the right to be present, and still has the right to participate in the proceeding. The preliminary hearing officer still produces a report and recommendation that informs the convening authority’s referral decision. National security does not suspend these protections. It modifies the mechanics around classified evidence while preserving the function of the hearing.
Practical takeaways
For a service member facing national security charges, the Article 32 hearing will feel both familiar and different. It will follow the recognizable Article 32 structure, but parts of it may occur behind closed doors, counsel may need clearances before reviewing key evidence, and protective orders will govern the handling of any classified material. The preliminary hearing officer carries heightened responsibility as the gatekeeper of classified information during the hearing.
These features make experienced counsel especially important. A military defense attorney familiar with classified evidence procedures can pursue the necessary clearances, insist that closures be no broader than necessary, test the government’s classified showing during closed sessions, and ensure that the protections of Article 32 are not quietly eroded under the banner of national security. The goal throughout is the same as in any case, to make the government prove that probable cause and jurisdiction genuinely exist before the accused faces a general court-martial.
Disclaimer
This article is provided strictly for general educational and informational purposes. It is intended to explain how the Uniform Code of Military Justice (UCMJ), the Rules for Courts-Martial, the Military Rules of Evidence, and related military administrative processes work as a matter of public legal education. It does not constitute legal advice, a legal opinion, or a recommendation about any particular case, and it is not a substitute for advice from a qualified military defense attorney who can evaluate the specific facts and command, service, and jurisdictional circumstances involved.
Reading this article, or contacting any website on which it appears, does not create an attorney-client relationship between the reader and any law firm, attorney, or author. Every court-martial, nonjudicial punishment action, administrative separation, and security-clearance matter turns on its own facts, the charged articles, the convening authority, the service branch, and the evidence, and outcomes vary widely from one case to another.
Military law also changes over time. The Military Justice Act of 2016 (effective January 1, 2019) and subsequent National Defense Authorization Acts renumbered and rewrote many punitive articles, revised the Article 32 preliminary hearing, and altered sentencing, clemency, and appellate procedures. Statutes, regulations, executive orders, the Manual for Courts-Martial, and decisions of the service Courts of Criminal Appeals and the Court of Appeals for the Armed Forces may have been amended, superseded, or reinterpreted after this article was written, and article numbers or procedures cited here may have changed.
For these reasons, no reader should act or decline to act based on this content without first consulting a licensed attorney experienced in military justice about their own situation. The author and publisher make no warranty, express or implied, as to the accuracy, completeness, timeliness, or current applicability of the information provided, and disclaim any liability for any action taken or not taken in reliance on it. If you are facing investigation, charges, or an adverse administrative action, time limits may apply, and you should seek qualified counsel promptly.